Removing software patents from the US patent system still not on the agenda in Washington
Summary: A quick overview of some news of interest from the US patent system, where software patents are still on the agenda (but not their official elimination)
SEVERAL sites recently analysed cases destined (or likely) to reach SCOTUS, the US Supreme Court. Here is one such example. It doesn’t appear as though SCOTUS will entertain the question of software patentability any time soon, so the impact of Alice will stand unshaken/unchallenged.
“It doesn’t appear as though SCOTUS will entertain the question of software patentability any time soon, so the impact of Alice will stand unshaken/unchallenged.”It sure seems like a lot of practicing firms no longer pursue software patents to the same degree as before, neither in the courtroom nor in the patent office. The patent system itself, just like justice, is too slow and expensive. See this new article which says “Judge Indira Talwani emphasized the importance of timely intervention in any patent infringement suit, in a recent opinion out of the District of Massachusetts. In this case, an exclusive licensee of several patents was not permitted to intervene in a patent infringement suit, largely because its motion was filed many months too late.”
When patent cases take years to be settled (or decided on by a court) it contributes a great deal to uncertainty, not just legal costs, e.g. lawyers’ fees. Surely the lawyers and the courts love this a great deal. It’s what gives them job security.
“When patent cases take years to be settled (or decided on by a court) it contributes a great deal to uncertainty, not just legal costs, e.g. lawyers’ fees.”The Patent Trial and Appeal Board (PTAB) has contributed to the demise of patents on software in the US. The Court of Appeals for the Federal Circuit (CAFC), which introduced software patents in the first place and sometimes interacts with PTAB, has been the subject of focus in several recent posts from Dennis Crouch. Today he wrote that the “USPTO Stall[s] Implementation of Federal Circuit Decisions,” noting that “[a]ccording to Tam’s pi-day filed mandamus action, however, the USPTO Director has indicated that she will not comply with the Court’s until all potential appeals have been exhausted or expired. As such, the USPTO continues to refuse to publish the mark in the Official Gazette.”
Yes, great ‘justice’ right there.
Another very recent post from Crouch said that the Federal Circuit actually expressed reluctance to accept patents on certain computer games. To quote:
In reviewing the application, the Examiner Layno (Games art unit 3711) rejected these card games patents as ineligible under Section 101 – noting that the claim is “an attempt to claim a new set of rules for playing a card game [and thus] qualifies as an abstract idea.” The Patent Trial & Appeal Board affirmed that ruling – holding that “independent claim 1 is directed to a set of rules for conducting a wagering game which . . . constitutes a patent-ineligible abstract idea.” The particular physical steps such as shuffling and dealing are conventional elements of card-gambling and therefore (according to the Board) insufficient to transform the claimed abstract idea into a patent eligible invention.
It is good and increasingly reassuring to see that CAFC, under additional pressure from PTAB, sees the light on software patents and thus limits them.
A lot of abstract patent applications are being accepted as valid in the US and even rather trivial ones (which children can come up with) end up being accepted by the USPTO, where quality control basically got thrown out the window. Earlier today we saw MIP talking to people whose business is patenting seeds/plants/life and then suing companies (or threatening to sue them). “A new patent shows how airfares may one day depend on your girth,” said this very recent headline as well and speaking of games, here is an article by Joe Mullin about a topic which he covered before and we thereafter mentioned. “Defendant Jordan Gwyther,” Mullin claims, “has said that the litigation could threaten the future of his favorite hobby: live action role-playing, or “LARPing.” Gwyther and his fellow LARPers recreate medieval battles, wearing armor and using foam weapons to stage fights in local fields and parks.”
“Crouch has just tackled the question of prior art, but when examiners are overworked and compensated for grants more than for rejections, does it surprise anyone that almost every US patent application ends up being successful?”Patents on games are probably a step too far, especially when they involve virtual equivalents of something that existed for many centuries (if not millennial timescale). Crouch has just tackled the question of prior art, but when examiners are overworked and compensated for grants more than for rejections, does it surprise anyone that almost every US patent application ends up being successful? The EPO is now aping this trend, quite unfortunately.
Over in the US, where Amazon has some of the world’s most notorious software patents (Amazon is trying to do the same in Europe), Amazon is now seeking patent monopolies on biometric authentication. Biometrics are passwords you basically cannot change, but Amazon patents the misguided idea nonetheless. See some of today’s headlines, such as “Amazon Wants the Patent for Pay-By-Selfie”, “Amazon seeks patent for buying items with a look”, and “Amazon Wants the Patent for Pay-By-Selfie” [1, 2, 3].
“These aren’t “Americans” but multinational corporations that are based in the US.”As one article put it, “Amazon has filed a patent application to allow users to pay for items by taking a selfie. The tech giant argues the move would improve people’s security as they carry out more and more tasks online.”
Amazon also works closely with the CIA ($600 million computing deal), so sending Amazon many of personal, grainy photos isn’t necessarily the smartest thing to do.
“Americans file more patents in Australia than Australians!” screams a new headline today, but is anybody surprised? These aren’t “Americans” but multinational corporations that are based in the US. How many of these patents are on software? █
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Summary: The outcome of today’s meeting with Benoît Battistelli results in the imminent initiation of a strike action, which Battistelli keeps trying to delay/block
The EPO’s Central Staff Committee extended an olive branch to Benoît Battistelli, but he has clinched onto none of it. He’s too stubborn and proud of himself, even when he takes law into his own hands (from the hands of those qualified to do so).
The report on today’s meeting is already available and here it is as HTML:
Central Staff Committee
Le Comité central du Personnel
sc16045cp – 0.2.1/0.3.2
The meeting between the Central Staff Committee and the President has just finished. It lasted for just over two hours. The President was accompanied by VP 1, VP 2, VP 4, PD 4.3 and further advisors. Some Local Staff Committee members were present, but – as they declared with any intervention – only in an observer role. Although all agenda items were addressed and CSC made constructive proposals, the President was unwilling to concede in any way to any of the petitioners’ requests.
As your interlocutor in the recent call for strike (91% of staff voted in favour), we asked the President to take a position on the following questions. His responses are summarised below:
● Will you lift the disciplinary punishments against Elizabeth Hardon, Ion Brumme and Malika
The President stated he was strictly bound by the rules: for the disciplinary punishments, firstly a management review must be filed, and due procedure (ultimate review by ILO-AT) will follow. The President did not accept the CSC’s proposal compatible with the existing rules to receive legal advice and reconsider his decisions straightaway. Neither, despite long pendency times for a procedure before ILO-AT, the President did not accept our proposal to subject the decisions to external, independent review by involving renowned legal experts. The President was not aware that one management review request had already been filed; however, PD 4.3 confirmed that this was the case.
● Will you lift the disciplinary sanctions against the former members of the Internal Appeals Committee?
Again, the President declared he was bound by the rules. In this case, the time for management review had expired and he did not intend to revise the respective decisions.
● Will you stop the disciplinary threats, investigations and retaliations against further Staff Representatives?
The President did not comment on this question.
● Will you be ready to revise the Investigation Guidelines together with the Staff Representation based on a mandate that is agreed by both parties?
The President declared he would consider a future review. However, he regarded any kind of revocation as legally and politically impossible and rejected making such a proposal to the Council. Furthermore, any amendments resulting from a future review could not be applied retroactively. The CSC stressed that favourable decisions could have a retroactive effect. The President did not accept working together with the Staff Representation under an agreed mandate, since such an agreed mandate would simply be used as a veto right in the President’s opinion.
● Will you be ready to adapt the strike regulations according to the judgment of the Dutch Court?
The President stated that there were many contrary decisions delivered by national courts that raised the issue of immunity. The President set forth that the judgment in question had been already referred to the Supreme Court with the support of the Dutch government.
● Will you be ready to revise the health, sick-leave and invalidity regulations together with the Staff Representation based on a mandate that is agreed by both parties?
The President acknowledged reviews were necessary and in progress. Referring to the upcoming social study, the President declared this would be a useful indicator of necessary change. Therefore, he could not contemplate a major review before autumn.
● Which further concessions are you willing to make?
No further proposals were made.
The President did not agree that the Office is in crisis. He was of the opinion that he had the full support of the Council with this view. Therefore, the CSC cannot see any reason yet to postpone the strike. Nevertheless, our final decision in this regard will only be taken following the outcome of the meeting of the Administrative Council.
Your Central Staff Committee
If Battistelli “did not agree that the Office is in crisis,” then he is clearly delusional, probably as self-deluding as the people who published this nonsense today in Munich. One person online called it “DEPRESSING & DISGUSTING!!! Nothing but LIES!”
If someone can send us a translation, we can prepare a rebuttal. There is a big PR campaign going on and if left unchallenged it can fool a lot of people in Munich and beyond. █
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Summary: A status report one day before the staff’s demonstration and readers’ thoughts on what may be needed at the European Patent Office in order to attain peace
THE EPO is in a transitory phase right now. Battistelli’s job is at stake and more clarify will be given/provided tomorrow or the day after tomorrow. Philip Cordery wrote about this yesterday and we require an accurate translation of it. Based on the opening paragraph (automated translation from Google): “At my request, the European Affairs Committee held a hearing on March 1 the President of the European Patent Organisation (EPO), Mr. Battistelli. This was the question the functioning of the office, on the eve of the introduction of the unitary patent, but also on the social situation deteriorated in the Intergovernmental office.”
“Battistelli’s job is at stake and more clarify will be given/provided tomorrow or the day after tomorrow.”In French (until there is a proper translation this will be a more accurate text): “A ma demande, la Commission des affaires européennes a auditionné le 1er mars dernier le président de l’Organisation européenne des Brevets (OEB), Monsieur Battistelli. Il s’agissait de l’interroger sur le fonctionnement de l’office, à la veille de l’introduction du brevet unitaire, mais aussi sur la situation sociale dégradée au sein de l’office intergouvernemental.”
There is also coverage in Handelsblatt right now (newspaper published in Düsseldorf): “Der 68-jährige Franzose Benoît Battistelli leitet seit 2010 das Europäische Patentamt, kurz EPA. Battistelli antwortet erstmals in einem deutschen Medium auf die massive Kritik an ihm. Zum Interview lädt er in die EPA-Zentrale in München. In der Chefetage im zehnten Stock ist der Ausblick auf die Landeshauptstadt prächtig.”
In the English media, especially patents-centric media, one article speaks about tomorrow’s demonstration. As MIP put it: “EPO staff have voted overwhelmingly in favour of strike action, but the SUEPO union has postponed organising a strike until after this week’s meeting of the Administrative Council” (summary).
Here is how IP Watch put it:
Over several years, Battistelli has angered SUEPO members by making changes to, among other things, employee strike, health and sick leave rules, internal appeals and investigation guidelines, and by firing three of the union’s representatives, SUEPO said in a 9 March statement.
The last demonstration took place on 17 February, the same day as a meeting of the AC Board, a sub-group of the full panel. The board gave Battistelli a document seen by IP Watch setting out its “very precise expectations from the Office management” on social and disciplinary issues, according to a 17 February summary of conclusions.
The document was necessary “as it appears that there are no other means of conveying the Council’s recurring concerns expressed over the past months,” it said. The board “has to deplore an obvious lack of willingness from the part of the President to embark on an overdue open discussion with the Council on contentious issues – foremost the social dialogue.”
Staff representatives are “all just waiting” to see what happens this week, said the knowledgeable source. Something is moving in the AC but what and why is unclear, the source said. In any case, the union will not strike without trying again to find a solution, the source added.
As we noted earlier on, Battistelli has received another chance, which he is likely to throw away based on his attitude towards Board 28. Patent quality is definitely getting worse at the EPO, as the previous post already explained (and the EPO ‘results’ are basically bunk). From a technical perspective alone, Battistelli has been a failure, so why was his term even extended at all? Just so that he can finish his effort trying to implement the UPC, which he so badly craves and lobbies for?
“The last rumours on Campinos as a likely successor of Battistelli at the EPO urge me to get this out of my chest,” one reader told us.
“Regardless of this last rumour,” the reader added, “it’s been a while [so] I wanted to vent this out and in fact I think Suepo and possibly most of the staff at EPO should be made aware of it (for what is possible to conceive the making “aware” such a union).”
“The downward spiral had been started, at least, with president Ingo Kober at the end of ’90s.”
–Anonymous“My statement is simple,” told us the reader, “kicking out and/or replacing Battistelli would now actually turn into an easy way out for the largest number of managers to keep the status quo as far as possible. And a lot of them do have this interest.”
We have been hearing the same kind of opinions for quite some time. It does not, however, mean that nothing whatsoever will change after Battistelli is out of the building. There are other people who have been the source of various problems and we named some of them before. Not all have been brought in (mostly as imports from France) by Battistelli.
“The general increasing pressure for productivity has since then selected, with a common and anthropologically natural set of mechanisms, a whole little army of “willing executioners” in all lines of management, in every department.”
–AnonymousTo put it with some names in the words of an anonymous reader: “The state of things with incompetent management, understaffed and exploited or unemployed personnel, all things affecting human resources, productivity pressure, decreasing quality, personal exploitation, personal favours, nepotism, other obscure or parallel or somehow hidden networks, such as freemasonry, have a long history in EPO. The downward spiral had been started, at least, with president Ingo Kober at the end of ’90s. The general increasing pressure for productivity has since then selected, with a common and anthropologically natural set of mechanisms, a whole little army of “willing executioners” in all lines of management, in every department. Some of them have become well established household names, such as Willy Minnoye, Yann Chabod, Karin Seegert, Patrick Bodard, Ludwig Kirst, Albert Koopman, Oswald Schröder, Milena Lonati, Christian Archambeau, Ebe Campi, Theano Evangelou, Omer Bullens, Jacques Michel, Richard Flammer, the entire platoons of directors of the examining departments and clerk units, which are the first line of management above examiners and clerks. Some of them might have lost their state of grace after entering in conflict with their once protectors or simply after that these had changed, some other left the office, often for the same reason, other times, having found better things to do. It’s the case of Schröder, Lonati, Campi, Michel, Archambeau. But most of them are still there, even if in another place and function.
“Not all names above have have had anything to do with most heinous practices (but chances are high that they all have witnessed them, at least), but they are just examples that the uncontrollably harsh reality at EPO is older than Battistelli’s office terms and is made possible by a plethora of otherwise still obscure names, which every day do their bit for their own personal cause at expense of others. And they are many.
“We might be very wrong if we think we are just talking about petty misdemeanor here: old mean corridor rumours, gambits to gain favors, to step ahead of others, to serve superiors and get from them a pat on the shoulders, a nice sentence or a higher marking on your notation.”
–Anonymous“They were there already, long before Battistelli came, they had been nicely selected, placed and replaced by previous administrations. They made possible all the abusive and unrefrained behaviour of a number of managers, directors and principal directors before and now they made possible for Battistelli and his court to do what they do. In essence they are their tools. All these apparently minor characters are responsible every day: they actively take decisions to submit the request of disciplinary procedures to the president, spy on people, issue threats, break rules of the internal Statute (the EPO Service Regulations), manipulate and falsify minutes and reports, bend the procedures of internal appeals, break any rule that otherwise would automatically have the local Police alerted and operating, steal and falsify documents, enter and manipulate digital accounts and computer hard disks, stalk employees at home and wherever possible, (at times simply by using the skills of Control Risks, other times on their own means, using local manpowers, who can be easily bought or easily intimidated: doctors, mail couriers, local bureaucracy…).
“They all do what they do without having Battistelli or any of his strict associate lurking over their heads in their offices. They all do these things actively and willingly: that means within their full discretionary power. They could refrain from such practices, if they only wanted. Once they receive an instruction, they still can chose time and context for it. If they had just a decent threshold for humane values they could surely contribute to de-escalation of what has caused years of pain and abuse to so many people (the suicides being only the tip of an iceberg. But no, why not please the boss? Only because a colleague seems under stress? So they go for it. After all, what else do they have in their lives…
“They had been behaving this way for decades, only more increasingly and relentlessly in recent times time and indeed at a wonderful rate now, under brilliant B.
“At the time where another not too forgotten predecessor was in charge, Mr Lionel Baranes, a somehow exceptionally courageous Vice President, especially by the standards of EPO, who got so much in conflict with this boiling underground of “creative managers” that his term had to be curtailed by using the reason that he was of the same nationality of the President: that would not do. Oh, but that is not much of a problem now, is it? He left with an open letter to the Office with statements along the lines of “the human resources are in a disastrous state”. Didn’t he know enough?
“We might be very wrong if we think we are just talking about petty misdemeanor here: old mean corridor rumours, gambits to gain favors, to step ahead of others, to serve superiors and get from them a pat on the shoulders, a nice sentence or a higher marking on your notation.
“Sure, all this happens, but there are more consistent issues suffering from all this: think of all procedures at a higher scale and for higher purposes. They simply are shaped by the same type of mental habit. Also because they are made by the very same kind of people. If once you wanted a pat on your shoulders from your director, by harassing Mr and Ms, one day you might want to get, say Microsoft, Nestlé, Volkswagen or any other big corporation to pat on your shoulder and maybe show their appreciation more consistently…
“How can we think these thick layers of humanity that make the scaffold of EPO’s human resources and technical resources management will simply stop by changing the very tiny top of the pie? It would be a great mistake to believe it. And how about all those people who know, who always knew and saw and heard, but always kept looking away? Do we think they will become finally active on the good side? Not for one minute. On the opposite: it’s also their interest to keep hiding their past (and present) passive complicity.
“So if any interest in reforming EPO is to be taken seriously, it surely should go well beyond ditching Battistelli in the vain hope that it all will change for the better. Most likely it won’t unless further, deeper work is done.”
–Anonymous“Making Battistelli the scapegoat for what actually has happened at all levels in the EPO for two decades before his term can be a strong temptation. It would also serve the purpose to give off the façade, for the suddenly increased public attention, that an end is being put to maladministration, actually allowing the decades old tradition of mismanagement and abuses to go on as if nothing had happened.
“So if any interest in reforming EPO is to be taken seriously, it surely should go well beyond ditching Battistelli in the vain hope that it all will change for the better. Most likely it won’t unless further, deeper work is done.
“Now, to cast light into the deeds of older and less spotlight-loving management layers of EPO, is what Suepo and finally the Examiners should strive for.
“Especially the Examiners should finally stop being prey of their comfortable and well paid fears, by showing much more openly their direct support to protest and to the people directly hit by abusive unjust measures.” █
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Squeezing not only staff but also the EPO’s (traditionally) good reputation for short-term gains
Summary: A look at some recent news and personal perspectives on the status quo of today’s European Patent Office, where examiners’ performance is measured using the wrong yardstick and patent quality is severely compromised, resulting in overpatenting that the public pays for dearly
THE EPO ‘results’ are being debunked already, but the EPO’s PR team keeps spreading that today, regardless of all the scrutiny [1, 2]. How much longer is this sustainable for?
Earlier today we spotted English language Chinese media citing the EPO’s ‘results’ which are basically embellished if not a half-truth/lie (or intentionally bad statistics).
“How much longer is this sustainable for?”Why is the EPO risking damage to its integrity and record on truth? Well, it already lies to journalists and to staff, so there’s probably not much reputation left to lose.
The other day we noticed EPO-friendly media citing the USPTO‘s Senior Counsel as follows:
USPTO Senior Counsel Mark Cohen notes that aggressive antitrust enforcement like that sought in the Hitachi Metals case could affect patenting activity in general, adding: “This can be of great concern in the non-SEP space, where a patentee may have a choice whether to disclose an invention or keep a proprietary method secret.”
Actually, this is what many in the software field do. They rely on hiding source code, copyright on Free software (that everyone can study, inspect and modify as long as copyleft is respected), and there’s hardly any room for antitrust enforcement in such a setting. There’s no rigid requirement imposed, nor are there patent lawsuits and shakedowns. India has been getting it right on software patents for many years and as WIPR put it a few days ago:
The revised guidelines on computer-related inventions by the Indian Patent Office imply a reversed position on whether software inventions should be patentable. Abhishek Pandurangi of Khurana & Khurana reports.
After the Indian Patent Office (IPO) published the first set of guidelines for examining patents for computer-related inventions in August, in February the office introduced an amended set of rules.
While the previous guidelines were kept in abeyance in response to strong protests by critics, a revision was expected, but surprisingly the IPO has replaced an excessively liberal set of guidelines indicating that any software is patentable with a contrary one which almost indicates that no software patents are allowed.
This article from Abhishek Pandurangi serves to remind us that much of the world (large populations) does not accept software patents, whereas the EPO increasingly does, unlike the US where Alice keeps marginalising them.
“The answers to the questions about patent leniency may actually be found in anonymous comments from insiders.”Simply put, under Battistelli there is a huge patent maximalism problem. Patent scope gets broadened in pursuit of additional profits, rendering any performance requirement invalid (comparing apples to oranges, if not actually patenting apples and oranges, which now seems possible at the EPO). Yesterday we saw this announcement titled “EPO Revokes a Patent of Biogen, Inc.’s (NASDAQ:BIIB) Top-Selling Tecfidera”. Why was this patent granted in the first place? Working under pressure or in rush? Inclination to lower the patent bar and issue/grant bogus patents? Whatever it is, as the article put it: “The European Patent Office (EPO) has revoked European Patent EP2137537, a method of use patent concerning Tecfidera, last week. If left unresolved, the move will take a big hit on Biogen’s balance sheets because sales of Tecfidera account for a third of its overall revenue in 2015.”
The answers to the questions about patent leniency may actually be found in anonymous comments from insiders. While many comments on the debunking of EPO ‘results’ have come from EPO apologists (if not worse) who are simply shooting the messenger, some of them come from insiders who acknowledge the problem (we have been hearing about these problems for a while). To quote:
I accept that life always involves compromises. But it is distressing to see EPO examiners slowly turning into the three wise monkeys (that is, if you don’t look too hard for problematic prior art, and don’t think too hard about strict compliance with all of the provisions of the EPC, then examination becomes a lot simpler… and faster).
I fully understand what is driving this process, as applicants, the EPO and national patent offices all stand to benefit. However, it does look like it could be the beginning of a process of erosion of the fundamental bargain with the public that underpins the whole patent system.
I am not saying that where we stand now is definitely unacceptable. Instead, I am merely pointing out that what appears to be a drive from the EPO for “examination light” represents a potentially dangerous trend that needs counterbalancing with strong input from voices representing the public interest.
I say this not as a “patent denier” but rather someone who believes in the patent system, and who wants to cherish it for many years to come.
Think about it. If the pendulum swings too far in terms of permissiveness, then there are certain to be cases where aggressive patent owners assert blatantly invalid patents against competitors with shallow pockets – potentially aided by the €11k fee at the UPC for filing a counterclaim for invalidity. It will not take many cases where a patent owner can be painted as a bad actor for there to be overreactions in the opposite direction. If you have any doubts about what can happen, then witness the effect that lobbying by anti-patent pressure groups has had on “gene” (or other “natural phenomenon”) patents in the US and Australia. Scary stuff!
I agree that some of the professed aims of the ECFS system are laudable. Indeed, there is no point prioritising cases where everyone is happy to let sleeping dogs lie. However, it is not hard to see that much of what is prioritised by ECFS are the “easy wins”, where examination is very straightforward.
The inevitable short term hike in productivity figures produced by ECFS is not to be welcomed for two reasons. Firstly, it will leave a rump of “clearly difficult” cases that no examiner wants to tackle – because the time taken to sort them out will be too detrimental to the examiner’s apparent productivity. Secondly, it is likely to provide a strong temptation to examiners to keep their productivity figures high by waiving through “borderline” cases – ie. treating them as if they are also “easy wins”.
Nobody expects the EPO’s search and examination to be exhaustive. However, they will be doing us all a favour if a way is found to reward examiners for doing their job properly – and not just speedily. In this respect, it is important to acknowledge that it is impossible to constantly drive down the time taken to search and examine applications without compromising on quality. The best that you can hope for is an acceptable balance between speed and quality. Thus, management initiatives that seek to constantly increase productivity look increasingly like a drive to reach the bottom of the barrel.
Here is another noteworthy and long comment:
Based on our own experience and talking to others in the profession, it seems that for some examiners getting examination reports issued quickly involves being totally unhelpful, simply not dealing with issues or throwing in a load of amendments and gambling on the applicant just accepting what is given to avoid remaining in examination.
I have recently seen a first examination report to issue on amendments filed in 2011 in response to the EESR. Unfortunately, an amendment shown on a manuscript amended copy of the claims filed with the response did not make it into the clean copy of the claims. The amendment was described at length in the covering letter and is shown clearly on the manuscript amended copy. Rather than examine the claims as including that amendment or call the representative to ask him to submit a clean copy of the claims that included the amendment, some four plus years after the filing of the response, the examiner examined the claims as those the amendment did not exist. Furthermore, despite the fact the representative’s letter explained various reasons why other features of claim 1 distinguished over the cited prior art, the examiner has just parroted the objections from the EESR without giving any clue as to why he/she disagrees with the representative’s analysis. So about as helpful as a chocolate teapot. However, somewhat craftily, an allowable dependent claim has been allowed.
In a case of my own, we submitted amended claims on entering the regional phase accompanied by a two-part letter explaining the basis for the amendments. Ahead of the search report we got a note from the examiner saying that no basis for the amendments had been supplied when the amendments were filed and if this was not supplied within a month or two, I don’t remember which now, the amended claims would not be searched. We were given no more information than that so wrote back pointing out that we had filed a two page letter explaining the basis for the amendments. The response from the examiner was to issue a partial search report with the comment that neither our first letter or our second letter explained the basis for amendments. As far as I can make out, since the **** has not been sufficiently helpful to provide any useful indication, he just did not consider the explanation of the amendments to a couple of claims sufficiently complete. Leaving aside whether he is entitled to ask for further detail at that stage, we might have been able to move things forward if he’d just said asked us to provide additional explanation of the amendments made to particular claims instead of sending out a communication which was misleading and, basically, factually incorrect.
These are just two examples I am aware of and I am guessing that neither I nor those I know in the profession are being singled out for special treatment.
Basically we are seeing cases that already suffer from long delays in examination making no meaningful progress because examiners are simply bloody-minded, unhelpful or do not take the trouble to explain the issue. How much this is down to the mindset of individual examiners and how much a response to management pressure, I really do not know; whatever , it is not doing the reputation of the EPO any favours.
As the above put it, “cases that already suffer from long delays in examination [are] not doing the reputation of the EPO any favours.” Discriminatory practices aren’t the solution to this.
Not only delays are the problem; patent quality too is a serious issues, including grants of software patents in spite of the EPC. █
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